Appeal from a judgment of the District Court of Nassau County, First District (William J. O'Brien, J.), rendered August 13, 2009. The judgment, after a nonjury trial, convicted defendant of driving while intoxicated per se and driving while intoxicated. The appeal from the judgment of conviction brings up for review the denial of defendant's motion to suppress the results of defendant's blood test.

ORDERED that the judgment of conviction is affirmed.

Following a suppression hearing and a nonjury trial, defendant was convicted of driving while intoxicated per se (Vehicle and Traffic Law § 1192 [2]) and driving while intoxicated (Vehicle and Traffic Law § 1192 [3]). The testimony of the People's witnesses adduced at the suppression hearing established that defendant was arrested at 3:40 P.M. and a blood test was administered with defendant's consent at 5:20 P.M. The blood alcohol test results indicated that defendant's blood alcohol level was .18 of one percent.

Defendant's sole contention on appeal is that the blood test results should have been suppressed on the grounds that he did not consent to said test and the police did not obtain a warrant to administer the blood test.

Vehicle and Traffic Law § 1194 provides, among other things, that any person who operates a motor vehicle in this state shall be deemed to have consented to a blood test, for the purpose of determining blood alcohol content, as long as the test is administered at the direction of a police officer having reasonable grounds to believe such person was operating a motor [*2]vehicle while intoxicated or impaired by the consumption of alcohol, and within two hours after such person has been placed under arrest for such violation (see Vehicle and Traffic Law § 1194 [2] [a] [1]). In this case, the blood test was administered to defendant less than two hours after his arrest. Moreover, the evidence adduced at the suppression hearing established that defendant voluntarily consented to the blood test. Thus, the test results were properly admitted
into evidence at trial (see People v Marietta, 61 AD3d 997 [2009]). Accordingly, the judgment convicting defendant of driving while intoxicated per se and driving while intoxicated is affirmed.

Nicolai, P.J., and LaCava, J., concur.

Tanenbaum, J., dissents in a separate memorandum.

Tanenbaum, J., dissents and votes to reverse the judgment of conviction, vacate the order denying defendant's motion to suppress the results of his blood test, grant defendant's motion and remit the matter to the District Court for a new trial, in the following memorandum:

In my view, defendant's blood test results should not have been admitted into evidence since the evidence adduced at the suppression hearing failed to demonstrate that defendant had voluntarily consented to the blood test.
Decision Date: January 20, 2011